The Vice-Chancellor.
The bill in this cause is filed by George Bowen and Ann Eliza his wife and by Mary Ann Idley, an infant, by George Bowen her next friend—Ann Eliza Bowen and Mary Ann Idley are sisters and the only children of Joseph Idley deceased. The defendant is the widow of Joseph Idley and the step-mother of the two complainants. One object of the bill is to set aside an instrument purporting to be the last will of the deceased, and made shortly before his death, upon the ground of fraud by the defendant in procuring it, added to the incompetency of the decedent. It bears date the third day of May one thousand eight hundred and twenty-[160]*160five. Another object of the bill is, to reinstate and establish & former will made on the third, day of April one thousand eight-hundred and twenty-five, for the purpose of allowing the complainants to have the benefit of it as the last will of the testator Joseph Idley: such will, as they allege, having been made when the deceased was of sound mind and fully competent, and cancelled or destroyed by the defendant or by her direction or through her procurement without the direction, desire, consent or knowledge of the testator.
There is no doubt about the necessity and propriety of an issue of devisavit vel non, as regards the paper of the third day of May one thousand eight hundred and twenty-five propounded as a will: unless the objection taken by the counsel for the defendant, to the further prosecution of this suit in its present form, should prevail.
The objection is, that Mary Ann Idley, the infant, ought to have been a defendant to the suit, because, as is said, her interest is in opposition to that of the other complainants: she being entitled under the will, which- is sought to be set aside, to the whole estate in remainder after the death of the defendant, her step-mother (to whom, it is there devised for life) whereas, if the will of the third of April is established, the infant will be entitled to one" half of the estate in remainder—and because, if both wills are entirely put out of view, she will then come in for only a share of the estate. In other words, that it is her interest to sustain the will of the third day of May one thousand eight hundred and twenty-five, and that in seeking to set it aside, they act adversely to her and ought to have made her a defendant. Another point is added: that the court is bound, whenever the suggestion is made, to look to the rights of an infant and arrest the further progress of a suit commenced by a prochem ami, if it appear not to be for the benefit of the infant. There can be no question as to the duty and power of the court on the latter point. Numerous instances are to be found where the court has interfered and instituted an inquiry, by a reference, in order to ascertain whether a suit is for the benefit of an infant; and, as occasion required, the court has changed a guardian and the position of the infant in order [161]*161to have its rights better protected : Cooper's Eq. 28; Plunket v. Joyce, 2 Sch. & L 158 ; Garr v. Drake, 2 J. C. R. 542; Fulton v. Roosevelt, 1 Paige’s C. R. 178. It is not a little surprising, if there be any solid foundation for this objection, that it has not been made in an earlier stage of the suit; and I must say, it would have come with much more propriety before the cause was at issue or, at any rate, before the parties had incurred the trouble and expense of the volumhious testimony which appears in the case.
But I am by no means satisfied the interest of the infant lies that way. It is true she will be entitled under the will, if it be established, to the whole of the estate in remainder: still, until the death of her step-mother, which possibly may not be in many years, she is not legally entitled to one farthing’s benefit from the estate : in the other event, she will be entitled to a present estate and to the benefit of an immediate ample support which may be far more important to her, not only in a pecuniary but in a moral point of view, than a long deferred expectancy.
In Plunket v. Joyce, supra, it was quite apparent that the interest of the infant heir on whom the real estate descended was opposed to the marriage settlement sought to be carried into execution against him in behalf of younger children, and with whom he was made a co-plaintiffi This it was which made it necessary for him to be .placed in an adverse attitude to them; and more especially as the trustee in the settlement was the only defendant, and his rights were in subserviency of those claimed by the younger children. Not so, however, in the present case. Here, the cause is at issue, not merely as respects the rights of the infant but as between her co-plaintiffs, Bowen and wife, and the defendant in relation to the validity of the will—a question in which they as well as the infant are personally interested adversely to each other; and it is immaterial to the correct determination of the question, whether the infant is before the court as one of the complainants or as a defendant. Independent of her, here are parties before the court fully able to litigate the matter with all the advantages which the law and the evidence, brought to bear on either side, will afford s and it certainly can have no influence- upon the matter [162]*162of fact to be tried, on-which side the- infant stands. She is in'capable in law of compromitting her own rights; while the-act of her guardian ip placing her in the position of a complaiuant before the court, will not determine what those rights are.
It is more a-matter of form, so far as the validity of the will is concerned, that the infant is before the court. Its validity is to be settled by a jury as well as before this tribunal without regard to the situation in which she stands. The counsel for the defendants will be at liberty to 'Urge in argument, as' they have done here, that the interest of the infant requires the establishment of the will. Besides, the guardian will be reSponsible to the infant, when the latter comes of age, for every, breach or omission of duty, whether the same arises in using her name improperly and for the purpose of serving his own, purposes or by not protecting and guarding her rights.
I cannot permit the objection to prevail. There must be an issue to try the- question whether the instrument of the third day of May one thousand eight hundred and twenty-five is or is not a'valid will?
If this question is decided in favor of the defendant, there is, at once, an end of the cause. But, should the jury find it not to be a valid will, the question then recurs as to the will of the third day of April and whether that shall be established ?
There is no doubt-of the fact of the making of such a will nor is the competency of the testator to make a will at that time-disputed: although the defendant does allege, that the. complainant Bowen procured this will to be- made' by fraud and by an imposition practised upon the testator. The preponderance of testimony, however,, is strongly against the truth of the allegation.
The great and perhaps only real question in regard to that will is, as to its revocation. It was actually destroyed in the-lifetime of the testator and sometime between the third of Aprif and the same day of May—probably on or about the first day of May. The bill charges it to have been destroyed by the defendant, without the direction, consent or knowledge of" the testator.
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The Vice-Chancellor.
The bill in this cause is filed by George Bowen and Ann Eliza his wife and by Mary Ann Idley, an infant, by George Bowen her next friend—Ann Eliza Bowen and Mary Ann Idley are sisters and the only children of Joseph Idley deceased. The defendant is the widow of Joseph Idley and the step-mother of the two complainants. One object of the bill is to set aside an instrument purporting to be the last will of the deceased, and made shortly before his death, upon the ground of fraud by the defendant in procuring it, added to the incompetency of the decedent. It bears date the third day of May one thousand eight hundred and twenty-[160]*160five. Another object of the bill is, to reinstate and establish & former will made on the third, day of April one thousand eight-hundred and twenty-five, for the purpose of allowing the complainants to have the benefit of it as the last will of the testator Joseph Idley: such will, as they allege, having been made when the deceased was of sound mind and fully competent, and cancelled or destroyed by the defendant or by her direction or through her procurement without the direction, desire, consent or knowledge of the testator.
There is no doubt about the necessity and propriety of an issue of devisavit vel non, as regards the paper of the third day of May one thousand eight hundred and twenty-five propounded as a will: unless the objection taken by the counsel for the defendant, to the further prosecution of this suit in its present form, should prevail.
The objection is, that Mary Ann Idley, the infant, ought to have been a defendant to the suit, because, as is said, her interest is in opposition to that of the other complainants: she being entitled under the will, which- is sought to be set aside, to the whole estate in remainder after the death of the defendant, her step-mother (to whom, it is there devised for life) whereas, if the will of the third of April is established, the infant will be entitled to one" half of the estate in remainder—and because, if both wills are entirely put out of view, she will then come in for only a share of the estate. In other words, that it is her interest to sustain the will of the third day of May one thousand eight hundred and twenty-five, and that in seeking to set it aside, they act adversely to her and ought to have made her a defendant. Another point is added: that the court is bound, whenever the suggestion is made, to look to the rights of an infant and arrest the further progress of a suit commenced by a prochem ami, if it appear not to be for the benefit of the infant. There can be no question as to the duty and power of the court on the latter point. Numerous instances are to be found where the court has interfered and instituted an inquiry, by a reference, in order to ascertain whether a suit is for the benefit of an infant; and, as occasion required, the court has changed a guardian and the position of the infant in order [161]*161to have its rights better protected : Cooper's Eq. 28; Plunket v. Joyce, 2 Sch. & L 158 ; Garr v. Drake, 2 J. C. R. 542; Fulton v. Roosevelt, 1 Paige’s C. R. 178. It is not a little surprising, if there be any solid foundation for this objection, that it has not been made in an earlier stage of the suit; and I must say, it would have come with much more propriety before the cause was at issue or, at any rate, before the parties had incurred the trouble and expense of the volumhious testimony which appears in the case.
But I am by no means satisfied the interest of the infant lies that way. It is true she will be entitled under the will, if it be established, to the whole of the estate in remainder: still, until the death of her step-mother, which possibly may not be in many years, she is not legally entitled to one farthing’s benefit from the estate : in the other event, she will be entitled to a present estate and to the benefit of an immediate ample support which may be far more important to her, not only in a pecuniary but in a moral point of view, than a long deferred expectancy.
In Plunket v. Joyce, supra, it was quite apparent that the interest of the infant heir on whom the real estate descended was opposed to the marriage settlement sought to be carried into execution against him in behalf of younger children, and with whom he was made a co-plaintiffi This it was which made it necessary for him to be .placed in an adverse attitude to them; and more especially as the trustee in the settlement was the only defendant, and his rights were in subserviency of those claimed by the younger children. Not so, however, in the present case. Here, the cause is at issue, not merely as respects the rights of the infant but as between her co-plaintiffs, Bowen and wife, and the defendant in relation to the validity of the will—a question in which they as well as the infant are personally interested adversely to each other; and it is immaterial to the correct determination of the question, whether the infant is before the court as one of the complainants or as a defendant. Independent of her, here are parties before the court fully able to litigate the matter with all the advantages which the law and the evidence, brought to bear on either side, will afford s and it certainly can have no influence- upon the matter [162]*162of fact to be tried, on-which side the- infant stands. She is in'capable in law of compromitting her own rights; while the-act of her guardian ip placing her in the position of a complaiuant before the court, will not determine what those rights are.
It is more a-matter of form, so far as the validity of the will is concerned, that the infant is before the court. Its validity is to be settled by a jury as well as before this tribunal without regard to the situation in which she stands. The counsel for the defendants will be at liberty to 'Urge in argument, as' they have done here, that the interest of the infant requires the establishment of the will. Besides, the guardian will be reSponsible to the infant, when the latter comes of age, for every, breach or omission of duty, whether the same arises in using her name improperly and for the purpose of serving his own, purposes or by not protecting and guarding her rights.
I cannot permit the objection to prevail. There must be an issue to try the- question whether the instrument of the third day of May one thousand eight hundred and twenty-five is or is not a'valid will?
If this question is decided in favor of the defendant, there is, at once, an end of the cause. But, should the jury find it not to be a valid will, the question then recurs as to the will of the third day of April and whether that shall be established ?
There is no doubt-of the fact of the making of such a will nor is the competency of the testator to make a will at that time-disputed: although the defendant does allege, that the. complainant Bowen procured this will to be- made' by fraud and by an imposition practised upon the testator. The preponderance of testimony, however,, is strongly against the truth of the allegation.
The great and perhaps only real question in regard to that will is, as to its revocation. It was actually destroyed in the-lifetime of the testator and sometime between the third of Aprif and the same day of May—probably on or about the first day of May. The bill charges it to have been destroyed by the defendant, without the direction, consent or knowledge of" the testator. This- she positively denies ; and in her answer relates the particular manner in which it was destroyed (by burning) [163]*163'Slider the direction and by the particular desire of the testator, as well as in his sight. I see no direct evidence contra-dieting this portion of her answer, which is responsive to the hill. It may, however, be, that the testator was, at the time, as equally incompetent to revoke as to make a will. If so, the burning of the paper will not be a revocation, because it catinot be considered as done anima revocandi. The presumption •of law, however, is, that it was destroyed anima revocandi: for the law does not presume fraud and the burthen of proof as upon the complainants.
There is no difficulty, if that will should be found not duly-revoked, of establishing it by a decree of this court. Its contents are proved by the testimony of the gentleman who drew It and witnessed the execution of it by .the testator. In Trevelyan v, Trevelyan, 1 Phil. 153, Sir John Nicholl said, “ there can be no doubt in law that if a will duly executed is destroy-•'•l ed in the lifetime of the testator, without his authority, it may be established upon satisfactory proof being given of its having ■“ been so destroyed, also of its contents.” There, the learned judge pronounced in favor of and established a will from the deposition of a witness as to its contents.
I shall, therefore, direct, that the issue to be made up embrace the subject matter of the will of the third day of April, both as to its execution and revocation, as well as the alleged will of the third day of May one thousand eight hundred and twenty-five.
Upon the return of the verdi.cí, I shall have the whole case before me in order to establish the one will or the other or pronounce in favor of an intestacy,
N. B. The appeal which the defendant took te the above decision was not decided by his honor the Chancellor directly upon the grounds taken before the Vice-Chancellor. It turned upon the appellant’s having no right to appeal from an order which did not injure her. The following is a copy of the Chancellor’s opinion: “ The only serious objection urged against “ the decision of the Vice-Chancellor in this case is, that the in- " font should have been a defendant instead of a joint complai[164]*164"nant. Without expressing any opinion upon the correctness “ of ihe "Vice-Chancellor’s decision on that point, I am satisfied «p. not furnish any grounds for an appeal by the defendant “ in h01’ own name. » No one can appeal from an order who is “ not injured thereby: Steele v. White, 2 Paige’s C. R. 478. The “ decree or order of the Vice-Chancellor, so far as it affects the “ rights of the appellant, is affirmed with costs; and so far as « the appeal seeks to protect the right of the infant, it must be u dismissed, but without prejudice to the right of any person to “ apply to the Vice-Chancellor in behalf of the infant to inquire “ whether it is for the interest of the infant to have the suit pro- “ secuted in her name.”
An appeal from the chancellor’s order is pending in the court ' of errors.